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Wednesday, 23 February 2011

Copyright confusion

An article by James Boyle in today’s FT is a good example of how people get the wrong end of the stick when debating copyright. While copyright is not the most exciting subject to some, to others it arouses such passion that clear thinking goes by the board.

Boyle’s article criticizes a piece co-authored by Scott Turow in the NYT. Turow’s piece argues that the building of theatres in Elizabethan London with their admission fees allowed playwrights to make a living from writing, which cultivated a wave of brilliant dramatists. Copyright, it says, has similarly allowed creative people to make a living from their work.

But this is what Boyle hears:

‘The argument is so strange it is hard to know where to begin. The problem is not simply that Shakespeare flourished without copyright protection for his work. It is that he made liberal use of the work of others in his own plays in ways that would today almost certainly generate a lawsuit. Like many readers, I found myself wondering whether Shakespeare would have survived copyright, never mind the web. Certainly, the dense interplay of unidentified quotation, paraphrase and plot lifting that characterizes much of Elizabethan theatre would have been very different; imagine what jazz would sound like if musicians had to pay for every fragment of another tune they work into a solo.’

Turow is making a point about how it helps if creative people can make a living out of their work, whether through selling tickets (in the case of Elizabethan playwrights) or copyright (from the 18th century). Boyle tries to undermine the argument by commenting on whether 21st-century copyright law would have presented stylistic problems for Shakespeare. That may be an interesting question but it’s not what Turow is driving at.

James Boyle is on the panel of the Hargreaves Review, which has called for evidence about copyright from ‘the widest possible range of interests’, so no doubt some of the views will not necessarily accord with the panel’s. The first challenge in the apparently overwhelmingly exciting copyright debate is to start by actually hearing what the other person is saying.

5 comments:

DavidB
said...

Sure, it's not what Turow was driving at, but when you engage in public debate you should try not to use weapons that are likely to blow your own head off. Handing your opponents such an *obvious* line of counter-attack is just plain inept.

It would be interesting to see whether Mr. Boyle could actually provide documentation of concrete passages where the late Mr. Shakespeare has plagiarized already existing works that at the time would fall under a hypothetical 70 years pma copyright protection in such a way that today it would fall on the wrong side of the law. If his proposition is correct, examples must be plenty and easy to find. Personally, I remain to be convinced. Shakespeare was a great artist and, as Pablo Picasso put it: "Bad artists copy. Good artists steal.”

@ DavidB - I'm not sure I agree. I don't see that one can always avoid making a point because you fear that people will mishear you and go off on a tangent.

In terms of whether the NYT piece's argument does actually stack up, Shakespeare isn't the ideal person to support their case for the simple reason that no one knows who wrote the works of Shakespeare and there is a high probability that they were written by a well-heeled aristocrat who did not need to make a living out of writing (e.g. Sir Henry Neville). It is perfectly possible that he did benefit in the way the authors suggest but not a certainty. The other playwrights mentioned are less likely to muddy the economic waters: Jonson started life as a bricklayer, Marlowe was the son of a shoemaker and Kyd the son of a scrivener.

It makes particular sense in areas where the production of copies and distribution is very capital intensive. We are now in the age of post-mechanical reproduction; there has been a phase shift (similar to that sudden transition from solid ice to liquid water), where it goes from here who knows

Both the copy and stage rights to Shakespeare's work seemed to have existed at the common law as private property during his life. Consider this heavily abridged excerpt from Charles Read's The Rights and Wrongs of Authors pgs 137-138 http://books.google.com/books?id=U_Y-AAAAIAAJ&pg=PA111&dq=charles+read+rights+and+wrongs&hl=en&ei=bepqTaSjLcG5tgef97jmAg&sa=X&oi=book_result&ct=result&resnum=5&ved=0CDwQ6AEwBA

In his day "The stage right of an author vested in the company upon the common law principle that the paymaster of a production is its proprietor. In his will ... he did not bequeath his plays to any one. Therefore ... they would go to his (wife). But they did not go to her. Created by a shareholder in the Globe, and handsomely paid for year by year, they remained,, the property of the theatre. The shareholders kept them ...for seven years after his death, and then printed them. His first editors, Hemming and Condell, had been his joint shareholders in the Globe."

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